Description:
Background
In this case, the appellant appealed against five convictions handed down to him by the ACT Magistrates Court. The appellant had been convicted of stealing money on five separate occasions from the till of the liquor section of Woolworths Pty Ltd. In proving the appellant guilty beyond a reasonable doubt, the prosecution had relied on CC TV electronic journal evidence matching the journal records time of refund on the cash register. The evidence showed that although a refund was processed at a certain time, neither a customer nor a supervisor (whose code was needed to authorise the transaction) was present at the relevant time of the refund.
The appellant argued, on appeal, that the time stamp on the CC TV evidence was inherently doubtful, the hypothesis that the appellant obtained the supervisors’ access codes to process the refund was not proven, that the process of reasoning supporting the prosecution’s case was based on hearsay assumptions of a witness, and that the prosecution had been conducted in a manner that was ‘confused and unfair’ leading to the tendering of evidence to which the appellant did not object.
Decision:
Chief Justice Higgins dismissed the appeal with respect to four of the five convictions. He acquitted the appellant for one of the convictions.
Reasoning
Chief Justice Higgins noted that the prosecution had conceded that for one of the charges the journal records of the transaction were in fact incomplete, and consequently that the appeal must succeed in respect of that charge.
In determining that the appeal for the other charges should be dismissed, his Honour noted that complete records were otherwise tendered for those transactions. However, his Honour also considered this assertion to be qualified: the times on the electronic journal (the CC TV) had been erased from the exhibit as tendered, but before they had been erased they had been viewed by a loss prevention investigator.
Chief Justice Higgins noted that as a witness for the prosecution, the investigator had verified the electronic journal times correlated with the register’s journal. His Honour concluded that the evidence of the investigator was not hearsay as the appellant had argued, because the investigator was qualified to authenticate the tendered records (National Australia Bank Ltd v Rusu and Others (1999) 47 NSWLR 309, 312). Also, Chief Justice reasoned that although the investigator (at 52)
alone had noted the two time stamps on the original surveillance tape …[and this opened] an attack on the accuracy of [the investigators] recollection that [shortcoming] was offset by his contemporaneous note and the correlation of the actual transactions which were observable on the video footage with the electronic register printout.
Chief Justice Higgins also dismissed as irrelevant the appellant’s claim that the prosecution had not proven that the appellant obtained the supervisors’ access codes to process the refund. His Honour considered that the charges had been proven beyond a reasonable doubt (at 48)
[t]here is no doubt in my mind that, on the evidence presented, his Honour was entitled to find the offences proved beyond reasonable doubt. Indeed, I would concur with that decision.
Finally, his Honour considered whether the prosecution had been conducted in a manner that was ‘confused and unfair’ and led to the appellant’s right to a fair trial, contrary to s 21 of the HRA (R v DA [2008] ACTSC 26 (31 March 2008)). In holding this right not to be breached, Chief Justice Higgins considered that despite the confusing manner in which the prosecution presented their evidence, ‘the chance of acquittal lost by the prosecution’s confusion was to my mind illusory’ (at 50).
Further, his Honour noted that upon being made aware of the misunderstanding in the CCTV time differences and having that misunderstanding explained by the investigator in his testimony, the appellant was offered time to consider the impact of the evidence but declined to do so. Chief Justice Higgins queried ‘[w]as that [refusing to take the offered adjournment] unreasonable? I think not. It must have been apparent that the explanation Mr Hunter offered was almost self-evidently correct.’ (at 50)
Comment
In this case, Chief Justice Higgins cited a previous decision he had given: R v DA [2008] ACTSC 26 (31 March 2008). In that case, his Honour had discussed the right to a fair trial in greater depth than was done here. In R v DA, Chief Justice Higgins had drawn a distinction between the negative common law right not to have an unfair trial, and the positive statutory right under s 21 HRA that confers a right to a fair trial.
ACTHRA Research Project’s summary of R v DA
ACTHRA Research Projects summary of R v Fearnside |
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